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Fishy Fishy – MOU between FSIS and FDA to Improve Interagency Cooperation

There have been on-going questions regarding the regulatory oversight of catfish inspection.  To address this concern, the 2014 Farm Bill required the Food Safety and Inspection Service (FSIS) and the Food and Drug Administration (FDA) to create a Memorandum of Understanding (MOU) to “improve interagency cooperation on food safety and fraud prevention and to maximize the effectiveness of personnel and resources related to examination of Suluriformes fish and fish products.”  The Agencies signed the MOU on April 30, 2014.

Currently, the FDA inspects all fish and fish products.  The 2008 Farm Bill transferred the regulatory authority for the inspection of catfish to FSIS.  FSIS has not yet begun to inspect any catfish; however, in 2011 it issued a Proposed Rule for mandatory catfish inspection.

One of the most controversial areas regarding the transfer of authorities was the “definition of catfish.”  The 2011 Proposed Rule considered two possible definitions:  (1) fish belonging to the family Ictaluridae, and (2) a broader definition of all fish of the order Siluriformes.  The broader definition includes fish in the Pangasiidae family, which are produced in Asia, such as basa, tra and swai.  The 2014 Farm Bill requirement for the MOU makes clear that the broader definition is to be adopted, and that FSIS is to be the primary regulatory authority for all fish of the order Siluriformes.

The MOU indicates that the two regulatory agencies are to follow existing dual jurisdiction procedures for those establishments that handle both Siluriformes fish and fish products as well as other fish and fish products.  The agencies are also to exchange information with regards to regulatory oversight.

We understand that the FSIS Final Rule for mandatory inspection of catfish will be submitted to the Office of Management and Budget in the very near future.  We anticipate that the final rule will contain provisions similar to the proposed rule.  Specifically, as proposed, the facilities would be required to obtain an official grant of inspection and be operated in a sanitary manner.  In addition to Sanitation Standard Operating Procedures (SSOP), Hazard Analysis Critical Control Point (HACCP), Salmonella Performance Standards, Ready-to-Eat performance standards, carcass dispositions, and labeling requirements, these facilities would have transportation and pre-harvest requirements to meet.  Most notably, the facilities would have FSIS continuous inspection.

It should be noted that by broadly defining the definition of catfish to include the Siluriformes fish and fish products, there will be regulatory and inspection consistency between the domestic producers and all importers for all fish within this Order.   With the broader definition of catfish, there is a possibility that it may take several years for importing countries to establish equivalency programs for these products. So while the MOU should facilitate interagency cooperation, there are some concerns that importing countries will view this transfer of regulatory authority as an unnecessary trade burden.

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